Appeals Court: FDA Tobacco Warning Label Law Violates Free Speech

April Flowers for redOrbit.com Your Universe Online

A divided U.S. Federal Court of Appeals invalidated a government mandate requiring tobacco companies to place graphic images on their products warning of the dangers of smoking. The majority opinion stated that the requirements were a violation of free speech.

The Family Smoking Prevention and Tobacco Control Act of 2009, would have required nine written warnings such as Cigarettes are addictive and Tobacco smoke causes harm to children on the packages, along with alternating images of a corpse and smoke-infected lungs. Other images required would have been a man smoking through a tracheotomy hole, a diseased mouth, and smoke coming from a child being kissed by her mother.

These written and graphic warning labels were scheduled to begin appearing next month. They would have covered half the cigarette packaging sold at retail outlets and 20% of all cigarette advertizing.

Tobacco giant, R.J. Reynolds, along with others such as Lorillard, brought the suit, saying that the warning would be cost-prohibitive. They also asserted the graphic images would dominate the packaging and damage the promotion of their brands. The relevant legal question was whether the new labeling was purely factual and accurate in nature or was designed to discourage use of the product.

The tobacco companies won in federal court in March, but the government appealed. The 2-1 split U.S. Court of Appeals for the District of Columbia has now upheld that ruling and the Food and Drug Administration was ordered to immediately revise its rules.

The First Amendment requires the government not only to state a substantial interest justifying a regulation on commercial speech, but also to show that its regulation directly advances that goal, wrote Judge Janice Rogers Brown. FDA failed to present any data much less the substantial evidence required under the federal law showing that enacting their proposed graphic warnings will accomplish the agencys stated objective of reducing smoking rates. The rule thus cannot pass muster under past court precedent.

Judge Brown and Judge A. Raymond Randolph rejected the FDAs claim that it had a governmental interest in effectively communicating health information regarding the negative effects of cigarettes.

The governments attempt to reformulate its interest as purely informational is unconvincing, as an interest in effective communication is too vague to stand on its own, said Brown. Indeed, the governments chosen buzzwords, which it reiterates through the rulemaking, prompt an obvious question: effective in what sense?

The majority opinion said the case raised novel questions about the scope of the governments authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest [...] by making every single pack of cigarettes in the country a mini billboard for the governments anti-smoking message.

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Appeals Court: FDA Tobacco Warning Label Law Violates Free Speech